Amended and Restated Certificate of Incorporation of ACNielsen eRatings.com – ACNielsen Corp.
Certificate of Incorporation of ACNielsen eRatings.com
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
ACNIELSEN ERATINGS.COM
Pursuant to §242 and §245 of the Delaware General Corporation Law
The undersigned, a duly authorized officer of ACNielsen eRatings.com, a
Delaware corporation (the âCorporationâ), does hereby
certify as follows:
A. The name of the Corporation is ACNielsen eRatings.com.
B. The original Certificate of Incorporation of the Corporation was filed
with the Secretary of State of the State of Delaware (the
âSecretaryâ) on September 21,1999, a Restated
Certificate of Incorporation was filed with the Secretary on September 22,1999
and a Certificate of Designation, Powers, Preferences and Rights of Class A
Preferred Stock and Class B Preferred Stock was filed with the Secretary on
September 22, 1999.
C. This Amended and Restated Certificate of Incorporation was duly adopted in
accordance with Sections 242 and 245 of the Delaware General Corporation Law
(the âDGCLâ), and amends, restates and integrates the
provisions of the Corporationâs Certificate of Incorporation as heretofore
amended and supplemented. The holders of all of the Corporationâs outstanding
stock have approved the Amended and Restated Certificate of Incorporation by
written consent, given in accordance with Section 228 of the DGCL.
D. The text of the Corporationâs Certificate of Incorporation, as heretofore
amended or supplemented, is hereby further amended and restated to read in its
entirety as follows:
1. The name of the corporation is ACNielsen eRatings.com (the
âCorporationâ).
2. The address of the Corporationâs registered office in Delaware is
Corporation Trust Center, 1209 Orange Street, City of Wilmington, County of New
Castle, Delaware 19801. The Corporation Trust Company is the Corporationâs
registered agent at that address.
3. The purpose of the Corporation is to engage in any lawful act or activity
for which corporations may be organized under the Delaware General Corporation
Law (the âDGCLâ).
4. The Corporation shall have authority to issue a total number of
202,000,000 shares of stock, initially consisting of (i) 200,000,000 shares of
common stock, $.0001 par value per share (the âCommon
Stockâ) and (ii) 2,000,000 shares of preferred stock, $.001 par
value per share (the âPreferred Stockâ), undesignated
as to class or scries other than as contemplated by paragraphs
5, 6 and 7 hereof with respect to the Class A Preferred and the Class B
Preferred, respectively. The number of shares of the Common Stock may be
increased or decreased by the affirmative vote of a majority of the voting power
of the Common Stock and Preferred Stock, voting together, entitled to vote on
the election of directors, irrespective of the provisions of §242(b)(2) of the
DGCL. Effective at the time of the filing with the Secretary of State of the
State of Delaware of this Amended and Restated Certificate of Incorporation,
each share of Common Stock issued and outstanding immediately prior to such time
shall, without any action on the part of the respective holders thereof be
reclassified as and subdivided into ten shares of Common Stock, and each stock
certificate that, immediately prior to the time of such filing, represented
shares of Common Stock shall, from and after such time and without the necessity
of presenting the same for exchange, represent the number of shares of Common
Stock into which the shares represented by such stock certificate were
reclassified and subdivided pursuant hereto. Subject to any limitations
prescribed by law, the Board of Directors of the Corporation (the
âBoardâ) is authorized to provide for the issuance of
the shares of unissued and undesignated Preferred Stock, in one or more classes
or series, and, in accordance with the DGCL, to fix the designation, powers,
preferences and rights of the shares of each such class and series and the
qualifications, limitations or restrictions thereof and to establish from time
to time the number of shares to be included in each such class or series.
Without limiting the generality of the grant of authority contained in the
preceding sentence, the Board is authorized to determine any or all of the
following, and the shares of each series may vary from the shares of any other
series in any or all of the following aspects:
(a) the number of shares of such series (which may subsequently be increased,
except as otherwise provided by the resolutions of the Board providing for the
issue of such series, or decreased to a number not less than the number of
shares then outstanding) and the distinctive designation thereof;
(b) the dividend rights, if any, of such series, the dividend preferences, if
any, as between such series and any other class or series of stock, whether and
the extent to which shares of such series shall be entitled to participate in
dividends with shares of any other series or class of stock, whether and the
extent to which dividends on such series shall be cumulative and any
limitations, restrictions or conditions on the payment of such dividends;
(c) the time or times during which, the price or prices at which, and any
other terms or conditions on which, the shares of such series may be redeemed,
if redeemable;
(d) the rights of such series, and the preferences, if any, as between such
series and any other class or series of stock, in the event of any voluntary or
involuntary liquidation, dissolution or winding-up of the Corporation and
whether and the extent to which shares of any such series shall be entitled to
participate in such event with any other class or series of stock;
(e) the voting powers, if any, in addition to the voting powers prescribed by
law of shares of such series and the terms of exercise of such voting powers;
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(f) whether shares of such series shall be convertible into or exchangeable
for shares of any other series or class of stock, or any other securities, and
the terras and conditions, if any, applicable to such right; and
(g) the terms and conditions, if any, of any purchase, retirement or sinking
fund which may be provided for the shares of such series.
5. The Certificate of Designation, Powers, Preferences and Rights of Class A
Preferred Stock and Class B Preferred Stock (the âCertificate of
Designationâ) was filed with the Secretary of State of the State
of Delaware on September 22, 1999. The provisions of Exhibits A and B to the
resolutions set forth in the Certificate of Designation, as amended and restated
hereby, are incorporated herein as paragraphs 6 and 7.
6. Class A Preferred Stock. The designation, powers, preferences and
relative, participating, optional and other rights of the Class A Preferred
Stock of the Corporation shall be as follows:
(a) This class of preferred stock shall be designated as the âClass A
Preferred Stockâ (the âClass A Preferredâ). Shares of
the Class A Preferred shall have a par value of $.001 per share. The number of
authorized shares constituting this class shall be 50,000 shares. Each share of
the Class A Preferred shall have a stated value of $1,000 (the
âClass A Stated Valueâ).
(b) Whenever the board of directors declares a dividend on the Common Stock
payable other than in equity securities of the Corporation, the holders of
shares of the Class A Preferred shall be entitled to receive such dividends as
if the shares of the Class A Preferred had been converted into shares of the
Common Stock immediately prior to the date the board of directors declares the
dividend. The number of shares of the Common Stock on which the Class A
Preferred shall be paid a dividend shall be calculated using the conversion
formula set forth in subparagraph (d) of this paragraph 6. The Class A Preferred
shall not be entitled to receive any dividend payable in equity securities of
the Corporation without the consent of a majority of the holders of the Common
Stock (voting as a separate class).
(c) Liquidation Preference.
(i) In the event of any bankruptcy, liquidation, dissolution or winding up of
the affairs of the Corporation, whether voluntary or involuntary, each holder of
shares of the Class A Preferred then issued and outstanding shall be entitled to
receive, prior and in preference to any distribution of any of the assets or
funds of the Corporation to the holders of shares of Class A Junior Stock (as
defined below) by reason of their ownership of such stock, an amount per share
of the Class A Preferred equal to the Class A Stated Value of such share on the
date of liquidation (as adjusted for any stock dividends or splits with respect
to the Class A Preferred after September 22, 1999 (the date of filing of the
Certificate of Designation). If the assets and funds legally available for
distribution among the holders of the Class A Preferred shall be insufficient to
permit the payment in full
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of any such preference amount then the assets and funds shall be distributed
ratably among holders of shares of the Class A Preferred in proportion to the
number of shares of the Class A Preferred owned by each holder. If the assets
and funds of the Corporation available for distribution to stockholders shall be
insufficient to permit the payment in full of the aforesaid amount and any and
all amounts payable in such event to holders of outstanding Class A Parity
Securities (as defined below), the holders of shares of the Class A Preferred
and the holders of such other Class A Parity Securities shall share ratably (as
to cash, in-kind or other distributions) in any distribution of assets of the
Corporation in proportion to the fall respective preferential amounts to which
such shares are entitled âClass A Junior Stockâ shall
mean shares of the Common Stock or any other capital stock of the Corporation
ranking with respect to liquidation junior to the Class A Preferred.
âClass A Parity Securitiesâ shall mean any class or
series of capital stock that, in the event that the amounts payable thereon on
liquidation are not paid in full, is entitled to share ratably with the Class A
Preferred in any distribution of assets.
(ii) In the event the outstanding shares of the Class A Preferred shall be
divided (by stock split or otherwise) into a greater or lesser number of shares
of the Class A Preferred, the Class A Stated Value then in effect for each share
of the Class A Preferred shall, concurrently with the effectiveness of such
division, be proportionately decreased or increased, as applicable, by
multiplying the Class A Stated Value by a fraction, (1) the numerator of which
is the number of shares of the Class A Preferred outstanding immediately prior
to such subdivision and (2) the denominator of which is the number of shares of
the Class A Preferred outstanding immediately after such division.
(d) Conversion.
(i) Upon the closing of a firm-commitment underwritten initial public
offering of the Common Stock pursuant to an effective registration statement
under the Securities Act of 1933 (the âSecurities
Actâ), other than a registration statement relating solely to an
employee benefit plan or transaction covered by Rule 145 of the Securities Act,
or upon the written election of the holders holding a majority of the issued and
outstanding shares of the Class A Preferred, all the issued and outstanding
shares of the Class A Preferred (the âClass A Preferred
Outstandingâ) shall be automatically converted, as an aggregate
(and regardless of the number of shares of the Class A Preferred Outstanding),
into such number of shares of the Common Stock as will give the holders of the
Class A Preferred, in the aggregate, voting power over such percentage of the
Corporationâs Voting Securities (as defined below) as is equal to the Class A
Conversion Percentage (as defined in the next sentence). For purposes hereof,
the âClass A Conversion Percentageâ for the entire
class of the Class A Preferred shall initially (i.e., at
September 22,1999) be 80.1%, but shall be subject to adjustment from time to
time after September 22, 1999 as provided herein.
(ii) (A) In order to exercise the conversion right, a holder of the Class A
Preferred shall surrender all its certificates representing shares of the
Class A Preferred Outstanding to the Corporation, with a written notice of
election to convert, duly completed and signed. Upon notice from the Corporation
that holders of a majority of the issued and outstanding shares of the
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Class A Preferred have exercised the conversion right, any other holder of
shares of the Class A Preferred that has not given notice of its intent to
exercise the conversion right shall surrender immediately all its certificates
representing shares of the Class A Preferred Outstanding to the Corporation,
accompanied by a written notice of election to convert, duly completed and
signed Upon notice from the Corporation feat an initial public offering, as
provided in subparagraph (d)(i) above, has occurred, all holders of the Class A
Preferred shall surrender immediately all their certificates representing shares
of the Class A Preferred Outstanding to the Corporation for conversion.
(B) As promptly as practicable after the surrender by the holders of
certificates representing all the Class A Preferred Outstanding and in any event
within five (5) business days after such surrender, the Corporation shall issue
and deliver to the holders a certificate or certificates for the number of
shares of the Common Stock into which the Class A Preferred Outstanding
converted.
(C) The conversion shall be deemed to have been effected immediately prior to
the close of business on the date on which all of the precedent conditions shall
have been satisfied, and the person in whose name any certificate for the Common
Stock shall be issuable upon such conversion shall be deemed to have became the
holder of record of the Common Stock represented by such certificate at such,
time, on such date and at the Class A Conversion Percentage in effect at such
time, unless the stock transfer books of the Corporation shall be closed on the
date, in which event such person shall be deemed to have become such holder of
record at the close of business on the next succeeding day on which such stock
transfer books are open, and such conversion shall be at the Class A Conversion
Percentage in effect on the date such transfer books are open. All shares of the
Common Stock delivered upon conversion of the Class A Preferred Outstanding
shall upon delivery in accordance with the provisions hereof be duly and validly
issued and fully paid and nonassessable, free of all liens and charges and not
subject to any preemptive rights. Upon the surrender for conversion of
certificates representing the Class A Preferred Outstanding, the shares shall no
longer be deemed to be outstanding and all rights of a holder with respect to
the shares surrendered for conversion shall immediately terminate, except the
right to receive shares of the Common Stock or other securities, cash or other
assets as herein provided.
(iii) (A) The Class A Conversion Percentage shall be adjusted each time the
Corporation sells or issues shares of its Voting Securities (a âClass A
Adjustment Eventâ). The Common Stock and any other securities of the Corporation
that have voting rights in the election of directors together with the Common
Stock are collectively referred to herein as the âVoting
Securities.â Upon the issuance of any Voting Securities, the
Class A Conversion Percentage shall be adjusted by multiplying the Class A
Conversion Percentage in effect immediately prior to the Class A Adjustment
Event giving rise to the adjustment by a fraction, (1) the numerator of which
shall be the number of votes to which the Voting Securities outstanding
immediately prior to the Class A Adjustment Event giving rise to the adjustment
are entitled and (2) the denominator of which shall be the number of votes equal
to the sum of the (x) numerator and (y) the number of votes to which the shares
of Voting Securities giving rise to the Class A Adjustment Event are entitled.
The adjustment provided for in this subparagraph (d)(iii)(A) shall become
effective immediately. No further
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adjustments in the Class A Conversion Percentage shall be made upon (he
subsequent conversion or exchange, as applicable, of such Voting Securities
pursuant to the original terms of any convertible Voting Securities. The
issuance of any convertible securities which are not Voting Securities, but are
convertible or exchangeable into Voting Securities, shall not give rise to an
adjustment hereunder until such securities are converted or exchanged.
(B) Notwithstanding any provision of this subparagraph (d)(iii) to the
contrary and without limitation of any other provision contained in this
subparagraph (d)(iii), if any securities of the Corporation other than the
Class A Preferred (collectively, the âSubject
Securitiesâ), are amended or otherwise modified by operation of
their terms or otherwise (including without limitation by operation of
anti-dilution provisions applicable to the Subject Securities) in any manner
whatsoever that causes such Subject Securities to become convertible into a
greater number of Voting Securities, then such amendment or modification shall
be treated for purposes of this subparagraph (d)(iii) as if the Subject
Securities that have been so amended or modified have been terminated and new
securities have been issued with the amended or modified terms. The Corporation
shall make all necessary adjustments (including successive adjustments if
required) to the Class A Conversion Percentage in accordance with subparagraph
(d)(iii).
(C) Whenever the Class A Conversion Percentage is adjusted as herein
provided, the Corporation shall promptly file in the stock books of the
Corporation an officerâs certificate setting forth the Class A Conversion
Percentage after the adjustment and setting forth a brief statement of the facts
requiring the adjustment, which certificate shall be conclusive evidence of the
correctness of the adjustment Promptly after delivery of the certificate, the
Corporation shall prepare a notice of the adjustment of the Class A Conversion
Percentage, setting forth the adjusted Class A Conversion Percentage and the
date on which the adjustment becomes effective, and shall mail such notice
(together with a copy of the officerâs certificate setting forth the facts
reaching such adjustment) to the holders of the outstanding shares of the
Companyâs capital stock at each holderâs last address as shown on the stock
books of the Corporation.
(iv) The Corporation shall at all times reserve and keep available, out of
the aggregate of its authorized but unissued shares of the Common Stock, for the
purpose of effecting conversions of the Class A Preferred, the full number of
shares of the Common Stock deliverable upon the conversion of the Class A
Preferred Outstanding not theretofore converted For purposes of this
subparagraph (d)(iii), the number of shares of the Common Stock deliverable upon
conversion of the Class A Preferred Outstanding shall be computed as if, at the
time of computation, all of the outstanding shares were held by a single holder.
The Corporation shall from time to time, in accordance with the laws of the
State of Delaware, increase the authorized amount of the Common Stock if at any
time the number of shares of the Common Stock remaining unissued is not be
sufficient to permit the conversion of all the Class A Preferred Outstanding.
(v) Except where registration is requested in a name other than the name of
the registered holder, the Corporation shall pay any and all documentary stamp
or similar issue
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or transfer taxes payable in respect of the issuance or delivery of shares of
the Common Stock upon conversion of the Class A Preferred Outstanding.
(vi) In case of any reclassification or change of outstanding shares of the
Common Stock (other than a change in par value, or as a result of a subdivision
or combination), or in case of any consolidation of the Corporation with, or
merger of the Corporation with or into, any other entity that results in a
reclassification, change, conversion, exchange or cancellation of outstanding
shares of the Common Stock or any sale or transfer of all or substantially all
of the assets of the Corporation, each holder of the Class A Preferred
Outstanding shall have the right thereafter to convert his shares of the Class A
Preferred into the kind and amount of securities, cash and other property that
he would have been entitled to receive upon such reclassification, change,
consolidation, merger, sale or transfer had he converted his shares of the
Class A Preferred into shares of the Common Stock immediately prior to the
reclassification, change, consolidation, merger, sale or transfer.
(vii) Notwithstanding anything herein to the contrary, no change in the
number of outstanding and/or authorized shares of the Voting Securities that
results from the subdivision or combination of the shares of any class or series
of Voting Securities into a larger or smaller, as the case may be, number of
shares shall cause an adjustment to the Class A Conversion Percentage. The
Class A Conversion Percentage shall be the same immediately after giving effect
to any such subdivision, combination or issuance as it was immediately prior
thereto.
(e) The Class A Preferred shall be entitled to vote the number of votes equal
to the number of shares of the Common Stock into which all shares of the Class A
Preferred could be converted on the record date fixed for determining the
holders of the Class A Preferred entitled to vote at the meeting or to give the
consent sought The number of shares of the Common Stock into which such shares
of the Class A Preferred could be converted is such number of shares of the
Common Stock as would give the holders of the Class A Preferred, in the
aggregate, voting power over such percentage of the Corporationâs Voting
Securities as is equal to the Class A Conversion Percentage. Except as otherwise
specifically provided herein or as provided by law, holders of the Class A
Preferred shall vote together with holders of the Common Stock as a single class
on all matters brought before the stockholders of the Corporation.
(f) As long as any shares of the Class A Preferred are outstanding, the
Corporation shall not, without first obtaining the written consent of the
holders of a majority of the outstanding shares of the Class A Preferred, voting
as a single class, (1) authorize or issue any capital stock or any options,
warrants or other rights exchangeable or exercisable therefor, which are senior
in rights to the Class A Preferred with respect to liquidation preference or
(2) amend, repeal, modify or supplement any provision of this Amended and
Restated Certificate of Incorporation (as amended from time to time and
including any certificate of designation that may be filed hereafter and form a
part thereof) of the Corporation, the bylaws of the Corporation as in effect on
the date of issuance of the Class A Preferred or any other charter or bylaws
which may govern the Corporation or its subsidiaries, if such amendment, repeal,
modification or supplement would adversely affect the powers, preferences or
other rights of the Class A Preferred.
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(g) Miscellaneous Provisions.
(i) Except as otherwise expressly provided, whenever pursuant to this
paragraph 6 notices or other communications are to be made, delivered or
otherwise given to holders of shares of the Class A Preferred Stock, the notice
or other communication shall be made in writing and shall be by registered or
certified first class mail, return receipt requested, facsimile transmission,
courier service or personal delivery, addressed to the persons shown on the
stock books of the Corporation as such holders at the addresses as they appear
in the books of the Corporation, as of a record date or dates determined in
accordance with this Amended and Restated Certificate of Incorporation or the
bylaws of the Corporation and applicable law, as in effect from time to time.
All such notices and communications shall be deemed to have been duly given
(i) when delivered by hand, if personally delivered, (ii) when delivered by
courier, if delivered by commercial overnight courier service, (iii) five
(5) business days after being deposited in the United States mail, postage
prepaid, if mailed and (iv) when receipt is acknowledged, if sent by facsimile
transmission.
(ii) If any right, preference or limitation of the Class A Preferred set
forth herein is invalid, unlawful or incapable of being enforced by reason of
any rule or law or public policy, all other rights, preferences and limitations
set forth herein that can be given effect without the invalid, unlawful or
unenforceable right, preference or limitation herein set forth shall be deemed
dependant upon any other such right, preference or limitation unless otherwise
expressed herein.
7. Class B Preferred Stock. The designation, powers, preferences and
relative, participating, optional and other rights of the Class B Preferred
Stock of the Corporation shall be as follows:
(a) This class of preferred stock shall be designated as the âClass B
Convertible Preferred Stockâ (the âClass B
Preferredâ) and shall include any issued Class B Preferred Series
(as defined). Shares of the Class B Preferred shall have a par value of $.001
per share and shall be issuable in one or more series (each, a
âClass B Preferred Seriesâ); provided
that each Class B Preferred Series shall be identical in all respects
except with respect to the initial Class B Conversion Price, which shall be
determined in accordance with subparagraph (d) of this paragraph 7. The number
of authorized shares constituting this class shall be 50,000 shares. Each share
of the Class B Preferred shall have a stated value of $1000 (the
âClass B Stated Valueâ).
(b) Whenever the board of directors declares a cash dividend on the Common
Stock, the holders of shares of the Class B Preferred shall be entitled to
receive such dividends as if the shares of the Class B Preferred had been
converted into shares of the Common Stock immediately prior to the date the
board of directors declares the dividend. The number of shares of the Common
Stock on which the Class B Preferred shall be paid a dividend shall be
calculated using the conversion formula set forth in subparagraph (d) of this
paragraph 7.
(c) Liquidation Preference.
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(i) In the event of any bankruptcy, liquidation, dissolution or winding up of
the affairs of the Corporation, whether voluntary or involuntary, each holder of
the Class B Preferred then issued and outstanding shall be entitled to receive,
prior and in preference to any distribution of any of the assets or funds of the
Corporation to the holders of shares of Class B Junior Stock (as defined below)
by reason of their ownership of such stock, an amount per share of the Class B
Preferred equal to the Class B Stated Value of such share plus any dividends
declared but unpaid on such share on the date of liquidation. If the assets and
funds legally available for distribution among the holders of the Class B
Preferred shall be insufficient to permit the payment in full of any such
preference amount, then the assets and funds shall be distributed ratably among
holders of shares of the Class B Preferred in proportion to the number of shares
of the Class B Preferred owned by each holder. If the assets and funds of the
Corporation available for distribution to stockholders shall be insufficient to
permit the payment in full of the aforesaid amount and any and all amounts
payable in such event to holders of outstanding Class B Parity Securities (as
defined below), the holders of shares of the Class B Preferred and the holders
of such other Class B Parity Securities shall share ratably (as to cash, in-kind
or other distributions) in any distribution of assets of the Corporation in
proportion to the full respective preferential amounts to which such shares are
entitled. The merger or consolidation of the Corporation into or with another
corporation, partnership or other business entity in which the Corporation is
not the surviving entity, or a transaction in which the holders of the issued
and outstanding voting securities of the Corporation outstanding immediately
prior to such transaction beneficially own or control less than a majority of
the Voting Securities of the Corporation or surviving entity immediately
following such transaction, shall be deemed a liquidation, dissolution or
winding up of the Corporation for purposes of this paragraph 7(c).
âClass B Junior Stockâ shall mean shares of the Common
Stock, or any other capital stock of the Corporation ranking with respect to
liquidation junior to the Class B Preferred. âClass B Parity
Securitiesâ shall mean any class or class of capital stock that,
in the event that the amounts payable thereon on liquidation are not paid in
full, is entitled to share ratably with the Class B Preferred in any
distribution of assets.
(ii) In the event the outstanding shares of the Class B Preferred shall be
divided (by stock split or otherwise) into a greater or lesser number of shares
of the Class B Preferred, the Class B Stated Value then in effect for each share
of the Class B Preferred shall, concurrently with the effectiveness of such
division, be proportionately decreased or increased, as applicable, by
multiplying the Class B Stated Value by a fraction, (1) the numerator of which
is the number of shares of the Class B Preferred outstanding immediately prior
to such subdivision and (2) the denominator of which is the number of shares of
the Class B Preferred outstanding immediately after such division.
(d) Conversion.
(i) Upon the closing of a firm-commitment underwritten initial public
offering of the Common Stock pursuant to an effective registration statement
under the Securities Act, other than a registration statement relating solely to
an employee benefit plan or transaction covered by Rule 145 of the Securities
Act, each then outstanding share of the Class B Preferred shall be automatically
converted into such number of shares of the Common Stock calculated by
multiplying
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(i) the number of shares of the Class B Preferred to be so converted by
(ii) the Class B Conversion Rate (as defined below). For purposes hereof,
âClass B Conversion Rateâ shall mean the Class B
Stated Value per share divided by the Class B Conversion Price per share as then
in effect. For purposes hereof, the âClass B Conversion
Priceâ per share shall be determined on a series by series basis.
The initial Class B Conversion Price per share shall be equal to the fair market
value of the Common Stock as of the date of the event giving rise to the
issuance of the Class B Preferred Series, but shall be subject to adjustment
from time to time as provided herein. The fair market value shall represent the
Board of Directorsâ good faith estimate of the current fair market value of the
Common Stock.
(ii) (A) In order to exercise his conversion right, a holder of the Class B
Preferred to be converted shall surrender the certificate or certificates
representing the shares to be converted to the conversion agent, with a notice
of election to convert, duly completed and signed, at the principal office of
the conversion agent Upon notice from the Corporation that the closing of an
initial public offering, as provided in subparagraph (d)(i) of this paragraph 7,
has occurred, all holders of the outstanding Class B Preferred shall surrender
immediately all their certificates representing shares of the Class B Preferred
to the conversion agent for conversion. Unless the shares issuable upon
conversion are to be issued in the same name as the name in which the shares of
the Class B Preferred are registered, each share surrendered for conversion
shall be accompanied by instruments of transfer duly executed by the holder or
his duly authorized attorney. If the Corporation fails to designate a conversion
agent, the conversion agent shall be the Corporation.
(B) As promptly as practicable after the surrender by a holder of
certificates representing shares of the Class B Preferred and in any event
within five (5) business days after such surrender, the Corporation shall issue
and deliver to the person for whose account such shares of the Class B Preferred
was surrendered, or his nominee or nominees (subject to compliance with
applicable agreements restricting transfer), a certificate or certificates for
the number of full shares of the Common Stock. Any fractional interest in
respect of a share of the Common Stock arising upon the conversion shall be
settled as provided in subparagraph (d)(iii) of this paragraph. In the event
that a holder of the Class B Preferred converts less than all of the shares of
the Class B Preferred evidenced by the certificates surrendered by such holder,
the Corporation shall issue and deliver to such holder or in accordance with the
instructions of the holder, simultaneously with the issuance of certificates
representing shares of the Common Stock, a new certificate for the balance of
the shares of the Class B Preferred not so converted. For purposes hereof, a
âpersonâ shall include any individual, firm, corporation, limited liability
company, partnership, trust, incorporated or unincorporated association, joint
venture, joint stock company, governmental authority or other entity of any
kind, and shall include any successor (by merger or otherwise) of any such
entity.
(C) Each conversion shall be deemed to have been effected immediately prior
to the close of business on the date on which all of the precedent conditions
shall have been satisfied, and the person in whose name any certificate for
shares of the Common Stock shall be issuable upon such conversion shall be
deemed to have become the holder of record of the Common Stock represented by
such certificate at such time, on such date and at the Class B
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Conversion Price in effect at such time, unless the stock transfer books of
the Corporation shall be closed on the date, in which event such person shall be
deemed to have become such holder of record at the close of business on the next
succeeding day on which such stock transfer books are open, and such conversion
shall be at the Class B Conversion Price in effect on the date such transfer
books are open. All shares of the Common Stock delivered upon conversion of the
Class B Preferred shall upon delivery in accordance with the provisions hereof
be duly and validly issued and fully paid and nonassessable, free of all liens
and charges and not subject to any preemptive rights. Upon the surrender of
certificates representing the shares of the Class B Preferred to be converted,
such shares of Class B Preferred shall no longer be deemed to be outstanding and
all rights of a holder with respect to the shares surrendered for conversion
shall immediately terminate, except the right to receive shares of the Common
Stock or other securities, cash or other assets as herein provided.
(iii) No fractional shares or securities representing fractional shares of
the Common Stock shall be issued upon conversion of the Class B Preferred. Any
fractional interest in a share of the Common Stock resulting from conversion of
a share of the Class B Preferred shall be paid in cash (computed to the nearest
cent) equal to such fraction multiplied by the fair market value per share as
determined by the board of directors in good faith. If more than one certificate
representing shares of the Class B Preferred shall be surrendered for conversion
at one time by the same holder, the number of full shares issuable upon
conversion thereof shall be computed on the basis of the aggregate number of
shares of the Class B Preferred so surrendered for conversion.
(iv) The Class B Conversion Price shall be subject to adjustment as follows
if any of the events listed below occurs prior to the date on which conversion
occurs or is elected:
(A) If the Corporation shall (1) pay a dividend or make a distribution on the
Common Stock in shares of the Common Stock, (2) subdivide or reclassify its
outstanding shares of the Common Stock into a greater number of shares or
(3) combine or reclassify its outstanding shares of the Common Stock into a
smaller number of shares, the Class B Conversion Price in effect immediately
prior to such event shall be adjusted so that the holder of any share of the
Class B Preferred thereafter surrendered for conversion shall be entitled to
receive the number of shares of the Common Stock which he would have owned or
have been entitled to receive after the happening of such event had the share of
the Class B Preferred been converted immediately prior to the occurrence of such
event An adjustment made pursuant to this subparagraph (d)(ivXA) shall become
effective immediately after the record date in the case of a dividend or
distribution and shall become effective on the effective date in the case of a
subdivision, combination or reclassification. If any dividend or distribution is
not paid or made, the Class B Conversion Price then in effect shall be
appropriately readjusted.
(B) If the Corporation shall distribute to all holders of the Common Stock
any shares of capital stock of the Corporation (other than shares of the Common
Stock), evidences of indebtedness, cash, other assets (other than regular cash
dividends or distributions paid from retained earnings of the Corporation and
dividends or distributions referred to in
11
subparagraph (d)(iv)(A) of this paragraph 7) or rights, options or warrants
to subscribe for or purchase any of its securities then in each such case the
Class B Conversion Price shall be adjusted to equal the price determined by
subtracting from the Class B Conversion Price in effect immediately prior to the
date of the distribution the then fair market value (as determined by the board
of directors, whose determination shall be conclusive if made in good faith) of
the portion of the capital stock, cash, assets or evidences of indebtedness so
distributed, of the subscription rights, options or warrants so distributed or
of such convertible or exchangeable securities with respect to one share of the
Common Stock. Such adjustment shall be made whenever any such distribution is
made and shall become effective retroactive to the record date for the
determination of stockholders entitled to receive such distribution. If any such
distribution is not made or if any or all of such rights, options or warrants
expire or terminate without having been exercised, the Class B Conversion Price
then in effect shall be appropriately readjusted.
(C) Whenever the Class B Conversion Price is adjusted as herein provided, the
Corporation shall promptly file with the books of the Corporation an officerâs
certificate setting forth the Class B Conversion Price and Conversion Rate alter
the adjustment and setting forth a brief statement of the facts requiring the
adjustment, which certificate shall be conclusive evidence of the correctness of
the adjustment Promptly after delivery of the certificate, the Corporation shall
prepare a notice of the adjustment of the Class B Conversion Price and
Conversion Rate, setting forth the Class B Conversion Price and Conversion Rate
and the date on which the adjustment becomes effective, and shall mail such
notice (together with a copy of the officerâs certificate setting forth the
facts requiring such adjustment) to each holder of the Class B Preferred at such
holderâs last address as shown on the stock books of the Corporation.
(D) The Corporation shall not, by amendment of this Amended and Restated
Certificate of Incorporation or through any reorganization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or any other
action, avoid or seek to avoid the observance or performance of any term hereof
and shall at all times in good faith assist in carrying out all such terms and
in taking all action as may be necessary or appropriate to protect the rights of
the holders of the Class B Preferred against dilution or other impairment
Without limiting the generality of the foregoing, the Corporation (A) shall not
increase the par value of any shares of stock receivable on the conversion of
the Class B Preferred, (B) shall at all times reserve and keep available the
maximum number of authorized but unissued shares of the Common Stock, free from
all preemptive rights therein, sufficient to permit the full conversion of the
Class B Preferred and (C) shall take such action as may be necessary or
appropriate in order that all shares of the Common Stock as may be issued
pursuant to the conversion of shares of the Class B Preferred will, upon
issuance, be duly and validly issued, fully paid and nonassessable, and free
from all taxes, liens and charges with respect to the issue thereof.
(v) The Corporation shall at all times reserve and keep available, out of the
aggregate of its authorized but unissued shares of Common Stock, for the purpose
of effecting conversions of the Class B Preferred, the full number of shares of
Common Stock deliverable upon the conversion of all outstanding shares of Class
B Preferred not theretofore converted. For purposes of this subparagraph (d)(v),
the number of shares of the Common Stock deliverable upon
12
conversion of all outstanding shares of the Class B Preferred shall be
computed as if, at the time of computation, all of the outstanding shares were
held by a single holder. The Corporation shall from time to time, in accordance
with the laws of the State of Delaware, increase the authorized amount of shares
of the Common Stock if at any time the number of shares of the Common Stock
remaining unissued is not be sufficient to permit the conversion of ail the then
outstanding shares of the Class B Preferred. Before taking any action that would
cause an adjustment reducing the Class B Conversion Price below the then par
value of the shares of the Common Stock deliverable upon conversion of shares of
the Class B Preferred, the Corporation shall take any corporate action that may
be necessary in order that the Corporation may validly and legally issue fully
paid and nonassessable shares of the Common Stock at the adjusted Class B
Conversion Price.
(vi) Except where registration is requested in a name other than the name of
the registered holder, the Corporation shall pay any and all documentary stamp
or similar issue or transfer taxes payable in respect of the issue or delivery
of shares of the Common Stock on conversion of shares of the Class B Preferred.
(vii) In case of any reclassification or change of outstanding shares of the
Common Stock (other than a change in par value, or as a result of a subdivision
or combination), or in case of any consolidation of the Corporation with, or
merger of the Corporation with or into, any other entity that results in a
reclassification, change, conversion, exchange or cancellation of outstanding
shares of the Common Stock or any sale or transfer of all or substantially all
of the assets of the Corporation, each holder of the Class B Preferred then
outstanding shall have the right thereafter to convert his shares of the Class B
Preferred into the kind and amount of securities, cash and other property that
he would have been entitled to receive upon such reclassification, change,
consolidation, merger, sale or transfer had he held shares of the Common Stock
immediately prior to the reclassification, change, consolidation, merger, sale
or transfer.
(e) Each share of the Class B Preferred shall be entitled to a number of
votes equal to the number of shares of the Common Stock into which such share of
the Class B Preferred could be converted on the record date fixed for
determining the holders of the Class B Preferred entitled to vote at the meeting
or to give the consent sought Except as otherwise specifically provided herein
or as provided by law, holders of the Class B Preferred shall vote together with
holders of the Common Stock as a single class on all matters brought before the
stockholders of the Corporation.
(f) As long as any shares of the Class B Preferred ever issued are
outstanding, the Corporation shall not, without first obtaining the written
consent of the holders of at least 51% of the outstanding shares of the Class B
Preferred, voting as a single class, amend, repeal, modify or supplement any
provision of this Amended and Restated Certificate of Incorporation (as amended
from time to time and including any certificate of designation that may be filed
hereafter and form a part thereof) of the Corporation, the bylaws of the
Corporation as in effect on the date of issuance of the Class B Preferred or any
other charter or bylaws which may govern the Corporation or
13
its subsidiaries, if such amendment, repeal, modification or supplement would
adversely affect the powers, preferences or other rights of the Class B
Preferred.
(g) Miscellaneous Provisions.
(i) Except as otherwise expressly provided, whenever pursuant to this
paragraph 7 notices or other communications are to be made, delivered or
otherwise given to holders of the Class B Preferred Stock, the notice or other
communication shall be made in writing and shall be by registered or certified
first class mail, return receipt requested, facsimile transmission, courier
service or personal delivery, addressed to the persons shown on the stock books
of the Corporation as such holders at the addresses as they appear in the books
of the Corporation, as of a record date or dates determined in accordance with
this Amended and Restated Certificate of Incorporation or the bylaws of the
Corporation and applicable law, as in effect from time to time. All such notices
and communications shall be deemed to have been duly given (1) when delivered by
hand, if personally delivered, (2) when delivered by courier, if delivered by
commercial overnight courier service, (3) five (5) business days after being
deposited in the United States mail, postage prepaid, if mailed and (4) when
receipt is acknowledged, if sent by facsimile transmission.
(ii) If any right, preference or limitation of the Class B Preferred set
forth herein is invalid, unlawful or incapable of being enforced by reason of
any rule or law or public policy, all other rights, preferences and limitations
set forth herein that can be given effect without the invalid, unlawful or
unenforceable right, preference or limitation herein set forth shall be deemed
dependant upon any other such right, preference or limitation unless otherwise
expressed herein.
8. The Board shall have the power to make, alter or repeal the by-laws of the
Corporation.
9. The election of the Board need not be by written ballot
10. The Corporation shall indemnify to the fullest extent permitted by § 145
of the DGCL, as amended, from time to time, each person who is or was a director
or officer of the Corporation and the heirs, executors and administrators of
each such person.
11. No director shall be personally liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director for
any act or omission occurring subsequent to the date when this provision becomes
effective, except that a director may be liable (i) for any breach of such
directorâs duty of loyalty to the Corporation or its stockholders, (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under § 174 of the DGCL or (iv) for any
transaction from which such director derived an improper personal benefit
12. The Corporation elects not to be governed by §203 of the DGCL.
14
13. The Corporation shall not file in any court, pursuant to any statute of
the United States or any state, any petition in any bankruptcy, reorganization,
insolvency proceeding or dissolution proceeding, undertake an assignment for
benefit of creditors or appoint a receiver without the affirmative vote of each
director then holding office, including each such director holding office who
was nominated at the request of NetRatings, Inc. and its permitted transferees
and each such director holding office who was nominated at the request of
ACNielsen Corporation and its permitted transferees. The provisions of this
paragraph 13 shall be null, void and of no further force or effect following
consummation by the Corporation of an initial public offering pursuant to a
registration statement filed and declared effective under the Securities Act of
1933.
14. The Corporation shall not acquire or invest in any business (whether by
acquisition of capital stock or other equity interests of such business, or of
substantially all of its assets) which is not primarily engaged in a business
which is reasonably ancillary or related to or otherwise in furtherance of the
Corporationâs business of tracking or measuring audience, advertising and
viewing activities on the Internet, compiling data from such measurement,
licensing such data to third parties and selling consulting services related to
such data without the affirmative vote of each director holding office who was
nominated at the request of NetRatings, Inc. and its permitted transferees and
each director holding office who was nominated at the request of ACNielsen
Corporation and its permitted transferees. The provisions of this paragraph 14
shall be null, void and of no further force or effect following consummation by
the Corporation of an initial public offering pursuant to a registration
statement filed and declared effective under the Securities Act of 1933.
[Intentionally left blank]
15
IN WITNESS WHEREOF, the Corporation has caused this Amended and Restated
Certificate of Incorporation to be executed by its President and attested by its
Vice-President thereunto duly authorized, who acknowledge and affirm under
penalties of perjury that this certificate is the act and deed of the
Corporation and that the facts stated herein are true this 26th day
of October 2001.
| ACNIELSEN ERATINGS.COM | ||
|
By: |
/s/ Michael Elias |
|
|
Name: |
Michael Elias |
|
|
Title: |
Vice President |
|
|
ATTEST |
|
/s/ Ellenore OâHanrahan |
|
Name: Ellenore OâHanrahan |
|
Title: Assistant Secretary |
16
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